S260 CONGRESSIONAL RECORD — SENATE January 30, 2006 In the recent past, Republican Presi- The ACTING PRESIDENT pro tem- ous as they were in the earlier part of dents have made 15 of the last 17 nomi- pore. Under the previous order, the the last century, but they are still out nations to the Supreme Court. time from 10 to 11 shall be under the there. They are evident. All of us at The Republican stamp on the current control of the Democratic side. one time or another still see them. It is Court is undeniable, and clearly the The Chair recognizes the Senator not limited to a region of the Nation. prospects of the Court becoming more from Massachusetts. It exists in my part of the country as moderate in the near future are un- Mr. KENNEDY. Mr. President, today well. likely. at 4:30, Members of this body will be The question is, Are we moving for- Upon this backdrop, I have evaluated casting an extremely important vote, ward to knock down the walls of dis- the decisions and writings of Judge the implications of which are going to crimination? That has always been a Alito, closely watched the nomination be felt not only in the next several pretty basic test for me in terms of hearing in the Senate Judiciary Com- months but for a great number of reaching a judgment on the Supreme mittee, and listened to the statements years, not only for this generation but Court. of many colleagues on his nomination. for the next generation and the fol- I remember the case of Tennessee v. I have come away from this review lowing. It is on a nomination for the Lane that was decided not long ago. It with a number of concerns. Supreme Court of the United States involved a woman in a wheelchair, a First, Judge Alito did not provide and whether we are going to move single mom with two children, trained complete answers on many important ahead and have a final vote tomorrow. as a court reporter. The State was Ten- topics the way now Chief Justice Rob- There is nothing more important nessee. About 60 percent of all the erts did during his nomination hearing. than the votes we cast on nominations courtrooms in Tennessee for some rea- These included many critical issues to the Supreme Court, except sending son are on the second floor. The ques- such as: Is Roe settled law? What are young Americans to war. The implica- tion involved the Americans with Dis- the limits of the executive branch’s tions of this vote are far reaching. As abilities Act. I welcomed the oppor- power? one who has followed the courts of this tunity to work closely with my col- Second, Judge Alito failed to dis- country as they moved us to a fairer league from Iowa, Senator HARKIN, on tance himself from the radical views he and more just nation, this nomination that program. By the time we came to expressed in his earlier writings on the has enormous consequences and impor- the floor, we had bipartisan support for supremacy of executive power. tance. I doubt if we will cast another that legislation. President Bush 1 indi- Third, Judge Alito’s record includes such vote, unless it would be for a Su- cated it was the piece of legislation of troubling decisions on vital issues such preme Court nominee, any time in the which he was most proud. It wasn’t al- as search and seizure, reproductive near future. ways easy in terms of dealing with the rights, the power of Congress, civil I remember the beginning of the disabled. rights, and affirmative action. great march towards progress this Na- I can remember when we had 4 mil- Because of these facts, I have con- tion made with the Fifth Circuit in the lion children who were kept in closets cluded that the addition of Judge Alito 1950s, the great heroes, Judge Wisdom, rather than being able to go to school. to the Supreme Court would unaccept- Judge Tuttle, Judge Johnson, and We had bipartisanship on the IDEA, ably shift the balance of the Court on many others who awakened the Nation the Individuals with Disabilities Edu- many critical questions facing our to its greatness in terms of having cation Act, and we made enormous county, such as: America be America by knocking down progress during that time. Are there limits on the power of the walls of discrimination and prejudice. Then we had Tennessee v. Lane. The presidency? Our Founding Fathers didn’t get it question was whether that courthouse Can the Congress regulate the activi- right on that as we know. They effec- was going to make reasonable accom- ties of the states? tively wrote slavery into the Constitu- modations to let that single mother, How expansive is the right to pri- tion. We fought a Civil War that didn’t who was trained as a court reporter, vacy? resolve it or solve it. Though, obvi- avoid being carried up a flight of stairs, What deference should be given to ously, with President Lincoln and avoid being carried into the ladies legislative acts of the Congress? other extraordinary leaders, we began room, avoid other humiliating cir- How the Court addresses these ques- to move the process forward to knock cumstances because of her disability, tions goes to the heart of what we down the walls of discrimination. was that courthouse going to have to stand for as a country, which is why It was really as a result of the ex- make those reasonable accommoda- this nomination is so important. traordinary leadership of Dr. King, his tions. While many of my colleagues will allies and associates in the late 1950s, Four Justices on the Supreme Court disagree with my assessment of Judge that America began to think about said no, no, we don’t have to make Alito, this will be a lifetime appoint- what this country was all about, recog- those accommodations. But five said ment and a lifetime is too long to be nizing the stains of discrimination. We yes. Sandra Day O’Connor said yes on wrong. had the beginning of the movement to that and they made those accommoda- I yield the floor. knock down the walls of discrimination tions. That mother was able to gain en- in the Public Accommodation Act of trance into the courthouse and has had f 1964, the Voting Rights Act of 1965, the a successful career. She appeared be- EXECUTIVE SESSION Civil Rights Act of 1967, housing in fore our committee with tears in her 1968, title XIV in 1973. In 1965, we eyes. If that decision had gone 5 to 4 knocked down the walls of discrimina- the other way, all 50 States would have NOMINATION OF SAMUEL A. tion in our immigration laws, the na- had to have passed disability rights ALITO, JR., TO BE AN ASSO- tional origin quota system. The Asian- acts—not the Americans With Dis- CIATE JUSTICE OF THE SU- Pacific triangle discriminated against ability Act, but a Massachusetts dis- PREME COURT OF THE UNITED Asians. The national origin quota sys- abilities act, or Connecticut, or Rhode STATES tem discriminated against groups of Island. But we had the Americans With The ACTING PRESIDENT pro tem- countries. Disabilities Act, so 42 million fellow pore. Under the previous order, the We have made enormous progress, citizens with physical and mental dis- Senate will proceed to executive ses- not that laws themselves are going to abilities are now part of the American sion and resume consideration of Cal- solve these problems. We had laws that family today. Just as we have knocked endar No. 490, which the clerk will re- were passed, supported by Democrats down the walls of discrimination on port. and Republicans during this time, and race, religion, ethnicity, and gender, The assistant legislative clerk read we became a fairer and more just na- we have done so with disability. We the nomination of Samuel A. Alito, Jr., tion. Still there are important areas we have also made some progress in terms of New Jersey, to be an Associate Jus- have to move toward to complete the of gay and lesbian issues as well. tice of the Supreme Court of the march. The stains of discrimination We have made this march toward United States. are still out there, not nearly as obvi- progress. The question is whether we VerDate Aug 31 2005 23:47 Jan 30, 2006 Jkt 049060 PO 00000 Frm 00002 Fmt 4637 Sfmt 0634 E:\CR\FM\G30JA6.002 S30JAPT1 ycherry on PROD1PC64 with SENATE January 30, 2006 CONGRESSIONAL RECORD — SENATE S261 are going to have a justice who believes the rest. All of those issues went right thing those of us on Judiciary Com- in that march of progress, or whether out the window when Harriet Miers was mittee had no mind of. Maybe our we are going to have somebody who is nominated. The reason was because friends on the other side knew about it. going to be a roadblock in that march Harriet Miers didn’t pass a litmus test. But this is on the front page of the New toward progress. I express my opposi- Now we have Judge Alito. Before the York Times: Paving the Way For Alito tion to Judge Alito because I think he announcement ended, we see this ex- Began In Reagan Era. is the wrong judge at the wrong time traordinary wave of favorability that It goes on extensively, continuing on on the wrong court.